On July 24, 2013, I wrote to Senator Tom Coburn to express my concerns about the National Security Agency’s “PRISM” program. The program “XKeystone” was subsequently disclosed in the media. Unfortunately, Senator Coburn responded with the same “talking points” that have have already been repudiated in public discussions. He did not respond to the most important concern, i.e. that such NSA programs are inherently anti-democratic because they are not subject to oversight by voters. After all, American voters did not even know about the programs until they were disclosed by investigative journalists. The follow is a response to Senator Coburn’s talking points, which are also found below:

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Dear Senator Coburn:

Thank you for your response.

I met Ronald Reagan in 1979 when he came through Oklahoma City campaigning to be President. In the early days of his Administration, spending time with my father around young politicians and rallies, I remember many of the leading issues pushed by the Republican Party, long before “talking points.” Aside from the Cold War, the right to privacy was one of the primary concerns. Republicans worried that a left-leaning Democrat would turn American society into a 1985-Orwellian-type world where the government was able to track everything a person does.

Today, Americans have learned that the central government of the United States literally has the ability to sit at a desk, type some keys into a computer, without a warrant or court review, and learn what any given person has been doing on-line. Although the legislation that purportedly empowered this to happen was passed under a Republican administration, a Democrat President further empowered such programs, with the help of both parties. Where was the Republican Party I once knew?

Your response raises more concerns than it answers and overlooks several others.

You indicated that there has been much “inaccurate and incomplete” media “speculation” about two secret NSA programs. (I presume you mean “PRISM” and “XKeyscore”, although you did not address them by name). However, you do not identify any inaccuracies. Actually, using government and Congressional sources, it has been widely reported that it is unlikely that those programs prevented “dozens” of terrorist attacks, and that any such attacks could have been prevented by intelligence methods other than PRISM and XKeyscore.

You say that one of the subject provisions of the Patriot Act authorizes the production of Americans’ information regarding “telephone numbers dialed and length of call”. As an attorney who has practiced civil business litigation in the Northern District of Oklahoma, I know that the law requires a subpoena, a showing of relevancy (real need), and notice and opportunity to object by the involved person(s), before their records will be produced by a telephone company. I would venture to say that all Federal Courts (at least those that do not conduct their business in secret) in this country would require those elements. That’s because the identity of the people making or receiving a call is private information that is subject to Constitutional protections of privacy, notice, service and opportunity to object. When one considers that the FBI has recently been secretly obtaining such records (without providing notice or opportunity to object) in order to identify journalists’ protected sources, the identity of telephone numbers dialed is obviously very significant. The U.S. government simply has no business knowing who I’ve called and how long I talked to them without a specific showing of probable cause that particularly relates to me, instead of lumping me in with every person in America and others abroad.

You say that “this program does not give the government authority to indiscriminately sift through American citizens’ telephone records.” But the XKeyscore program clearly has that ability (as distinguished from “authority”). And the only “authority” a contractor needs to sift through such records is reportedly provided by his/her own “reasonable suspicion,” without any involvement of a court, executed at a desk by a drop-down box on a screen. Such “controls” do not mean searches made under XKeyscore are not indiscriminate.

Since I initially wrote, the public has also learned that the subject NSA has been feeding information to Federal law enforcement agencies, such as the DEA, which secretly used it to investigate Americans domestically. Once an arrest is made, other involved law enforcement and prosecutors reportedly “reconstruct the investigation” to hide the fact that the lead and arrest were actually initiated without probable cause or warrant. Such conduct by the government, and such programs, are plainly contrary to the principals upon which our Country was founded.

Any purported oversight by the Justice Department, the Director of National Intelligence, or the Senate Select Committee is insufficient to allay public concerns. As mentioned, there have been reports that the Justice Department has misused such information in conducting domestic investigations against Americans, including journalists, which has a chilling effect on the right to free speech. James Clapper, the Director of National Intelligence, flagrantly lied to Congress about the existence of the subject NSA programs, after it was first reported. (The President likewise initially sought to mislead the public before it became clear that the level of evidence reported made it impossible for him to deny.) And many in Congress have complained that the NSA has not been forthcoming during Congressional oversight hearings. President Reagan once said, “Trust but verify.” Voters also have the right of oversight. As I’ve previously indicated, THERE IS NO VOTER OVERSIGHT OVER THESE PROGRAMS, WHICH THE CONSTITUTION REQUIRES. Without voter oversight, the NSA programs are not constitutional. What other programs will we learn about in the months to come that we’re not being told about now?

You have made issues of government overspending and bringing down the national deficit centerpiece issues of your time in the Senate. It is concerning that a contractor like Booz Allen is involved in these NSA programs. Booz Allen is a notorious “Beltway Bandit,” infamous for overspending taxpayer money. Aside from the fact that a contractor had such wide access to private information, one wonders whether these NSA programs are really needed or whether contractors like Booz Allen are overstating the supposed need for the programs in order to boost their profits. The implication that our constitutional rights are being recklessly impinged by a profit motive is alarming to say the least.

Americans owe much gratitude to Edward Snowden. He threw away a cushy life in order to inform the public that their privacy rights were being trampled with impunity. While the U.S. government hounded him across the globe, the Director of National Intelligence was lying to Congress about these programs, and the President himself was deceiving the public, initially denying the scope of the programs. The fact that Mr. Snowden went to Mr. Putin for help suggests that by its utter disregard for constitutional principles and norms of a free society, of late, the United States government has things in common with regimes like Russia and China. If it weren’t for the actions of Mr. Snowden, we wouldn’t even be having this discussion; the President Obama wouldn’t have called for a ‘review’ of these programs, following the public’s outcry, which should be seen as a vindication of Snowden’s disclosures.

Consider the damage that has been done to democracy throughout the world due to the NSA programs. (The U.S. government created these programs, not Mr. Snowden.) While Egypt fights for its future, its populace and leaders, and other struggling countries in the Middle-East, look to America. They say, ‘See, the U.S. government spies on its people, too.’ They see how Obama promised to reign in programs like PRISM, but then did nothing after being elected. They question whether democracy works. China and Russia look at us now and laugh. They say we’re doing the same things that we’ve been criticizing them for years. They probably laugh at U.S. leaders who say the NSA programs are justified for the sake of “national security,” for that is the same reason that China and Russia have given for imprisoning their own dissidents; that is the same reason given by “Big Brother” in 1985. No, “security” is never a valid reason for trampling constitutional rights; not in a free society like ours.

I implore you to reconsider your position. The public faith in our democracy is at stake here. Please bring an end to the aforementioned NSA programs (and any others like it), end the related activities of the FCIS and Federal law enforcement, and pass legislation that fund government programs that would aggressively protect the private information Americans.

Sincerely,

Austin Reams

[Cobern’s Initial response]:

August 14, 2013
Mr. Austin Reams
[Address deleted]
Dear Mr. Reams,
Thank you for your email regarding National Security Agency (NSA) programs and Americans’ constitutional rights. It is good to hear from you.
Over the past few weeks, there has been considerable speculation in the press about two distinct but complementary NSA programs after the unauthorized disclosure of classified information by NSA contractor Edward Snowden. I understand why many Americans were outraged upon first hearing about the programs, but much of the information reported has been inaccurate and incomplete. As a member of the Senate Select Committee on Intelligence, I have provided oversight on these programs for a number of years, and I am confident that neither infringes upon the constitutional rights of American citizens. These programs are vital to our national security and have disrupted multiple potential terrorist plots, including a 2009 al-Qaeda plot to target New York City, dozens of other terrorist plots against our country, and terrorist plots in more than 20 countries around the world.
The first NSA program in question is authorized by Section 215 of the USA Patriot Act and concerns the collection of telephony metadata only, such as telephone numbers dialed and length of calls. It is designed to address a seam between foreign and domestic counterterrorism efforts exposed in the September 11, 2001, attacks on our nation. This program does not give the government authority to indiscriminately sift through American citizens’ telephone records. Rather, the program was specifically developed to allow the federal government to detect communications between terrorists who are operating outside of the United States, and are communicating with potential operatives inside our country. The metadata acquired and stored under this program may be queried only when there is a reasonable suspicion, based on specific and articulated facts that an identifier is associated with a specific foreign terrorist organization. In 2012, less than 300 unique identifiers met this standard and were queried.
Furthermore, this particular program is subject to strict controls and oversight. All queries against the database are documented and audited with only a small number of specifically trained officials having access to the data. Also, the Foreign Intelligence Surveillance Act (FISA) Court reviews the program every 90 days, and data not connected to an investigation must be destroyed within five years of the date of its collection.
The second NSA program in question is authorized under Section 702 of the Foreign Intelligence Surveillance Act and concerns the targeting of communications of non-U.S. persons located abroad for foreign intelligence purposes, counterterrorism, and counterproliferation. This program does not allow the government to target phone calls or emails of any U.S. citizen, or any other U.S. person. It allows only the targeting of communications of foreigners, and only when a foreigner’s communications have intelligence value.
This program is also subject to strict controls and oversight. Targeting decisions and the government’s use of the acquired information are regularly reviewed by the Department of Justice and the Office of the Director of National Intelligence. I, as well as other members of the Senate Select Committee on Intelligence, are provided with semiannual report regarding this program. Furthermore, the FISA Court must renew the program each year upon certification by the Attorney General and the Director of National Intelligence.
Speculation regarding these vital national security programs has been fueled by incomplete and inaccurate information with little context regarding the purpose of these programs, their value to our national security, and the protections that are in place which preserve our privacy and civil liberties. Furthermore, Edward Snowden, who fled the United States to disclose these programs in nations who are adversarial to our country— China and Russia—has committed an act of treason through his unauthorized disclosure, and has also damaged our intelligence community’s ability to protect our nation against ongoing and future terrorist plots.
In conclusion, as a member of the Senate Select Committee on Intelligence and the ranking member of the Committee on Homeland Security and Government Affairs, my top priority is to protect and defend the Constitution and the rights of American citizens. I will continue to oppose all legislation and government programs that threaten Americans’ freedom and liberty. Moreover, I will continue to ensure that the necessary tools we implement to defend our security are not used in a way that undermines our well-established privacy rights under the Constitution. It is important to remember that the War on Terror is asymmetric: terrorists take advantage of Islam and hold an ideology that glorifies suicide and rationalizes the massacres of civilians, while our two strongest advantages are our technologies and our rule of law. This is why it is so essential that we not only continue to utilize technology, but that we also never compromise our laws as a matter of national security.
Again, thank you for your email and for your input on this important topic. God bless.
Sincerely,
Tom A. Coburn, M.D.
United States Senator
TC: jw